Global Jurist最新文献

{"title":"Breaking out of the Regulatory Delusion. The Ban to Surrogacy and the Foundations of European Constitutionalism","authors":"Valentina Calderai","doi":"10.1515/gj-2019-0062","DOIUrl":"https://doi.org/10.1515/gj-2019-0062","url":null,"abstract":"Abstract The transnational market of reproductive services puts a strain on western European States that refuse to acknowledge surrogacy contracts on public policy grounds. The cases decided so far rise three questions. First, under what circumstances foreign surrogacy judgements should be recognised? Second, what would be the constitutional repercussions of the recognition of these judgements? Third, how would it be like a legislation at once effective and respectful of fundamental rights of all parties involved? This Article analyses these questions and how they relate to each other. Based on a transaction-cost economic framework an argument is made that neither top-down, nor market-based regulatory solutions overcome the constitutional arguments that uphold the ban to surrogacy. An alternative approach to legal reform is considered, grounded on IPL and substantive domestic measures.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/gj-2019-0062","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45344340","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Legal Culture and Food Culture in Labelling Regulation: An EU/US Comparative Analysis","authors":"Lorenzo Bairati","doi":"10.1515/gj-2019-0055","DOIUrl":"https://doi.org/10.1515/gj-2019-0055","url":null,"abstract":"Abstract This essay analyses several elements of food labelling regulation by comparing European and US models. In particular, food labelling is examined as an outcome of the interaction between legal culture and food culture as well as of the competition between public and private regulators. Indeed, the different functions of labelling (both as an informative and as a marketing tool) and the cultural divergences between the two models compel us to consider the cultural environment in which labelling is regulated and applied. These intricate phenomena are tackled by analysing the most heavily debated issues, such as health claims, Genetically Modified Organisms and Country of Origin Labelling. For each issue, different cultural drivers, as they relate to consumers, businesses and institutions, are compared. Concluding remarks stress divergences and convergences between the two models and propose some insights regarding the use of the notion of culture in global and comparative food law research.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/gj-2019-0055","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47545956","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Transplant of Trusts in Different Legal Jurisdictions: The Example of China","authors":"Giulia Terranova","doi":"10.1515/gj-2019-0060","DOIUrl":"https://doi.org/10.1515/gj-2019-0060","url":null,"abstract":"Abstract Legal transplants are considered a significant factor in the evolution of legal systems. One example of transplant of a legal institution through its prestige is the diffusion of the trust from the English legal system to other common law systems and to many civil law countries. One of these is China that in 2001 enacted the Trust Law of the People’s Republic of China. This paper wants to analyse the trust under the Trust Law and to compare it with the original model in the English legal system, understanding how far or how close it is from the original one.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/gj-2019-0060","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49229735","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The New EU Rules on Insurance Customer/Policyholder Protection Viewed against the NAIC Model Acts","authors":"Leo P. Martinez, Pierpaolo Marano","doi":"10.1515/gj-2019-0039","DOIUrl":"https://doi.org/10.1515/gj-2019-0039","url":null,"abstract":"Abstract Effective October 1, 2018, the Member States of the European Union had to bring into force the laws, regulations and administrative provisions necessary to comply with Directive (EU) 2016/97 of the European Parliament and of the Council of January 20, 2016 on insurance distribution (IDD). The IDD arose out of a desire to give insurance customers equal protection regardless of the type of distributor from which they obtained insurance. Essentially, the IDD seeks to level the playing field of protections for insurance customers by simplifying, consolidating, and expanding customer protections when needed. The IDD has the stated goal of focusing on “the area of the disclosure of information” to customers. The directive is intentionally broad and applies “to persons whose activity consists of providing insurance or reinsurance distribution services to third parties.” Although it is much too early to predict the course of the IDD within the European Union, a comparison can be drawn with the Model Acts promulgated by the National Association of Insurance Commissioners (NAIC) in the United States to glean an inkling as to where the IDD might be headed. Parts of the Model Acts have been in place for a number of years and, while the legal regimes they cover are modestly different, there are nonetheless broad lessons that can be drawn in the comparison of the two. Whether the path of the IDD follows the arc of the Model Acts, or not, will perhaps be attributed to three instrumental aspects: 1. The IDD is unquestionably focused on customer protection. The NAIC is more nearly concerned with uniformity. It may be that the IDD’s focus will contribute to better traction among the EU Member States then Model Acts have experienced in the United States. 2. Unlike the IDD, the NAIC Model Acts are not comprehensive with respect to customer protection. 3. The NAIC Model Acts have seen inconsistent adoption by the states, a factor that has contributed to a lack of uniformity and constancy across any number of insurance products. While the IDD should not suffer from spotty adoption, the relative flexibility of the EU Member States in adopting more stringent rules may lead to a lack of uniformity and consistency similar to that of the Model Acts. Thus, the IDD may very well face the same headwinds faced by the Model Acts in the United States. Accurate predictions are always elusive when dealing with the implementation of regulation and legislation. Accordingly, we will watch with curiosity whether the IDD, which takes a much more global approach in customer protection, will see more success.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/gj-2019-0039","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43735097","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Lack of Statutory Foundation, Vagueness, and Violation of the Rule of Lenity of California Second Degree Felony Murder","authors":"Sira Grosso","doi":"10.1515/gj-2019-0022","DOIUrl":"https://doi.org/10.1515/gj-2019-0022","url":null,"abstract":"Abstract Restrictions recently imposed by law on the application of felony murder in California Senate Bill n. 1437 amending Sections 188 and 189 of, and adding Section 1170.95 to, the Penal Code. and a judgment of a split California Court of Appeal rejecting the claim that the second-degree felony murder provision is unconstitutionally vague Cal. 4th App. Dist. April 30, 2019, see note 74. offer the occasion to analyze the Californian second degree murder. Second degree Felony murder in California, which is not spelled out by statute, relies on the jurisprudential construction of an “inherently dangerous felony”. According to the California Supreme Court, this criterion was conceived to accompany its overall aim of deterrence as well as function as a limitation on the application of felony murder itself. The purpose of this article is to highlight how the jurisprudential reconstruction of “inherently dangerous felonies” does not present a suitable criterion for determining whether second degree murder has taken place. While calling into play the goal of deterrence may bring forth paradoxical results, the “inherently dangerous felony,” upon which second degree felony murder relies, represents a double-edged sword. In fact, this article argues that it expands, rather than restricts, the application of felony murder, also posing several constitutional concerns. It follows that, since the “inherently dangerous” category acts as the essential base upon which second degree felony murder stands, the “crumbling” of the one should lead to the fall of the other.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/gj-2019-0022","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48984841","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Technical Solutions for Legal Challenges: Equality of Arms in Criminal Proceedings","authors":"S. Quattrocolo, C. Anglano, M. Canonico, Marco Guazzone","doi":"10.1515/gj-2019-0058","DOIUrl":"https://doi.org/10.1515/gj-2019-0058","url":null,"abstract":"Abstract The paper focuses on how computational models and methods impact on current legal systems, and in particular, on criminal justice. While the discussion about the suitabilty of the exploitation of learning machines and Artificial Intelligence (AI) either as surveillance means and human substitutes in the judicial decision-making process is arising, the authors reflect upon the risk of using AI and algorithm-based evidence in criminal proceedings. The claim of the paper is twofold: on the one hand, we should reinterpret todays legal frameworks, e. g. the European Convention of Human Rights, shifting the attention from possible violations of the right to privacy to potential infringements on a basic fair trial feature, the Equality of Arms. On the other hand, we should aknowledge that main legal issues, triggered by the breathtaking advancements in AI, can properly be addressed mainly through technical solutions (e. g. methods for assessing the completeness and correctness of digital evidence related to mobile devices and conversations). No legal theory, which overlooks the crossover of juridical and computational expertise, will survive the present time.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"20 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/gj-2019-0058","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41442513","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Common Law (And Not Roman) Origins of Amicus Curiae in International Law – Debunking a Fake News Item","authors":"L. Crema","doi":"10.1515/gj-2019-0038","DOIUrl":"https://doi.org/10.1515/gj-2019-0038","url":null,"abstract":"Abstract The possibility for private entities interested in international trials but without the legal requirements to participate as a party was precluded, in a classical vision of international law made for states and addressed to states. At present, however, with some notable exceptions, several international jurisdictions allow for the submission of amicus curiae briefs. These briefs were introduced to international courts by common law lawyers. Legal literature generally identifies it as an institution of classical Roman law. This paper will show that this assumption is, however, doubtful. An examination of the sources cited by an important dictionary and other decades-old legal scholarship relied upon today as establishing the Roman origins of amicus curiae, and a fresh study of Roman and later continental European primary sources reveal a different picture: in reality, there is neither a basis for grounding the amicus curiae in Roman law, nor is there a basis for grounding it in the medieval continental ius commune. The primary source is most likely English common law and, not surprisingly, it was common law lawyers who introduced the briefs into international litigation.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/gj-2019-0038","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43669185","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Re-Characterization Risk and True Sale Principle within the Context of Asset Securitization","authors":"O. Vygovskyy","doi":"10.1515/gj-2019-0027","DOIUrl":"https://doi.org/10.1515/gj-2019-0027","url":null,"abstract":"Abstract The aim of this paper is to determine the re-characterization risk inherent in a classic securitization project. The paper highlights the importance of making a more thorough investigation of the true-sale doctrine providing principal tools for minimization of such a risk. The author examines the legal consequences of re-characterization for a securitization project and outlines the basic factors which may lead to re-characterization. He explores the classic true-sale doctrine and suggests its better understanding within the securitization context. The existing literature provides no common approach which would help to distinguish between a sale and a secured loan in this context. This article fills a gap in the doctrine by establishing an efficient ‘purpose-oriented approach’, under which a court shall focus on the purpose of the principal transaction in securitization. We suggest the exhaustive list of criteria for characterization of such a deal which should include only adequacy of consideration paid for the receivables and adequacy of the subject-matter of the deal.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/gj-2019-0027","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49103085","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"“Feeding the Hungry, Quenching the thirsty”: Shaping the Rights to Food and Water in Disaster Settings through Humanitarian Standards","authors":"Emanuele Sommario, F. Spagnuolo, M. Alabrese","doi":"10.1515/gj-2019-0007","DOIUrl":"https://doi.org/10.1515/gj-2019-0007","url":null,"abstract":"Abstract Natural and technological disasters have the potential to severely undermine the capacity of States to comply with their human rights obligations. Among the most vital rights of disaster victims are the rights to food and water, encapsulated in the Covenant on Economic, Social and Cultural Rights. In this article, the scope of State obligations under international human rights law to secure sufficient amounts of adequate food and water in disaster settings is explored. After assessing if and to what extent the exercise of such rights can be restricted in the wake of a major disaster, the focus of the analysis shifts to the core content of State obligations, which are explored in the light of commonly accepted humanitarian standards. Lastly, the relationship between the obligation to ensure access to a minimum essential amount of food and water and the non-derogable right to life is examined.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"20 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/gj-2019-0007","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66793607","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Data Mining and Knowledge Discovery. Preliminaries for a Critical Examination of the Data Driven Society","authors":"Claudio Sarra","doi":"10.1515/gj-2019-0016","DOIUrl":"https://doi.org/10.1515/gj-2019-0016","url":null,"abstract":"Abstract Data Mining (DM) is the analytical activity aimed at revealing new “knowledge” from data useful for further decision-making processes. These techniques have recently acquired enormous importance as they seem to fit perfectly the requests of the so called “Data Driven World”. In this paper, first I give an overview of DM, and of the most relevant criticisms raised so far. Then using a well-known case study and the European General Data Protection Regulation as benchmark, I show that there are some specific ambiguities in this use of “knowledge” which are relevant for the ethical and legal assessment of DM.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-10-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/gj-2019-0016","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46134813","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}